Our decision herein (223 N.Y. 347) was upon a question of law submitted to the court by the Appellate Division. It having been therein decided that the Special Term had power to determine the question of the priority of the receiver's certificates upon the motion and the papers before it, as against the first mortgage bondholders or their trustee named in the first mortgage, and the case having been remitted to the Appellate Division for consideration in accordance with the opinion, it was, in my judgment, the duty of the Appellate Division to consider the appeal upon the papers before it. If it had upon the record returned to it by this court herein in May, 1918, reversed the order of the Special Term of May, 1917, and remitted the matter to the Special Term to take proofs upon the questions involved, it would, in my judgment, have been within the authority of the Appellate Division under the order of this court, and I would concur in the dismissal of the present appeal. I am of the opinion, however, that the order of the Appellate Division should be reversed because it improperly permitted the record sent to it to be materially changed. The Appellate Division did not merely receive a suggestion that another determination had been made on a more full and complete trial of the questions involved in equity actions, one brought by a bondholder and the other by the receiver, but the facts presented to the court in such actions and the decision of the court therein were considered and made a part of the record upon which the determination was made. Permitting the record so to be changed was not, I think, within the direction of this court or in compliance therewith.
The order appealed from should be reversed and the matter again remitted to the Appellate Division for consideration upon the record returned to it in May, 1918.
COLLIN and ANDREWS, JJ., concur with CHASE, J.
Appeal dismissed. *Page 74